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KEY TAKEAWAYS

  • The Supreme Court on 29th November, while deciding an appeal against a judgement of the Karnataka High Court held that the special court does not have the power to take cognizance of an offence under the MMDR Act in the absence of a specific provision to that effect unless the case is committed to it by the Magistrate under section 209.
  • However, on the question of whether or not the irregularity in taking cognizance will affect the trial, the court held that minor irregularities do not vitiate the trial.

DETAILS

  • This appeal was filed against the judgement of Karnataka High court. The appellant has moved to Karnataka HC asking for quashing of the criminal proceedings against him for allegedly being involved in unauthorised mining under Mines and Minerals (Development and Regulation) Act and Indian Penal Code. However, the HC dismissed his appeal.
  • The appellant contended that the order of the special judge cognizance is contrary to law. It was submitted that the special court under MMDR Act does not have the jurisdiction to take cognizance (and conduct trial) of offences punishable under the IPC without the case being committed to it by the Magistrate under Section 209 of CrPC.
  • As a result, it was argued that the order taking cognizance was irregular, and that the proceedings should be vitiated.
  • The court held that unless there is a specific provision to that effect, the special court does not have the authority to take cognizance of an offence under the MMDR Act unless the case is committed to it by the Magistrate under section 209.
  • However, it was held that under Section 460 of CrPC, to vitiate the proceedings, establishing a mere lack of authority is not enough. Section 460 is concerned with irregularities on the part of the Magistrate that do not vitiate the proceedings.

Details continued slide four

  • The court referred to Section 465 of the CrPC and concluded that this provision applies to challenges to interlocutory orders such as a cognizance order or a summons order based on procedural irregularities.
  • The court said that while determining if the irregularity has occasioned a failure of justice, the court shall see whether the objection could or should have been raised at an earlier stage in the proceeding.
  • The court concluded that “even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465 CrPC”.
  • The objective of this section, as explained by the court, is to prevent delays in the commencement of trial and it is “applicable to interlocutory orders such as an order taking cognizance and summons order as well.”
  • The courts were directed to determine the failure of justice by taking into consideration "stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings".

QUESTIONS

  • What are the irregularities given in Section 460 of CrPC?
  • Do you think the special court had any authority to take cognizance of the offence in this case?
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